Volunteer Discrimination Complaint Process, 30169-30177 [2021-11284]
Agencies
[Federal Register Volume 86, Number 107 (Monday, June 7, 2021)]
[Rules and Regulations]
[Pages 30169-30177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11284]
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PEACE CORPS
22 CFR Part 306
CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
45 CFR Part 1225
RIN 0420-AA27
Volunteer Discrimination Complaint Process
AGENCY: Peace Corps and Corporation for National and Community Service
(CNCS).
ACTION: Final rule.
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SUMMARY: The Peace Corps and CNCS finalize a proposed joint rule to
amend the regulations that the Peace Corps and CNCS follow to process
complaints of discrimination by volunteers and applicants for volunteer
service. The current regulations were promulgated in January 1981 when
the Peace Corps and domestic volunteer programs (such as VISTA, now
subsumed by CNCS) were one entity under an organization called ACTION.
At that time, Congress extended the statutory protections of the Civil
Rights Act and other laws to such volunteers. Congress has since
separated out the two agencies and has expressly removed the Peace
Corps. As such, the regulations need to be updated.
DATES: This final rule is effective June 7, 2021.
ADDRESSES: You may obtain additional information regarding this action,
identified by RIN 0420-AA27, by contacting the Office of the General
Counsel, Peace Corps, using any of the following methods:
Email: [email protected]. Include RIN 0420-AA27 in the
subject line of the message.
[[Page 30170]]
Mail: The Peace Corps/The Office of the General Counsel/
1275 First Street NE/Washington, DC 20526.
Instructions: All submissions received must include the receiving
agency's name, which is the Peace Corps, designate the Office of the
General Counsel, and note the Regulatory Information Number (RIN) for
this rulemaking.
FOR FURTHER INFORMATION CONTACT: David van Hoogstraten, (202) 692-2150,
[email protected].
SUPPLEMENTARY INFORMATION: This is the final joint rule by which the
Peace Corps and CNCS will amend the provisions of their regulations to
reflect the current statutory framework applicable to volunteer and
applicant rules for volunteer discrimination complaint processing. The
joint final rule is also striking references to the Peace Corps from 45
CFR part 1225, and adding a revised non-discrimination process into the
Peace Corps regulations in 22 CFR part 306.
Background
The Peace Corps is an independent government agency that was
legislatively established in 1961 by the Peace Corps Act. Separately,
in 1973, the Domestic Volunteer Service Act (Pub. L. 93-113)
established domestic volunteer programs, such as VISTA, and joined the
Peace Corps with those domestic volunteer programs under an umbrella
organization called ACTION.
In 1979, the Domestic Volunteer Service Act Amendments (Pub. L. 96-
143) extended the nondiscrimination policies and authorities set forth
in Title VII of the Civil Rights Act of 1964, Title V of the
Rehabilitation Act of 1973, and the Age Discrimination Act of 1975 to
applicants for enrollment and volunteers serving under both the Peace
Corps Act and the Domestic Volunteer Service Act. That section further
directed that any remedies available to individuals under such laws,
other than the right to appeal to the Equal Employment Opportunity
Commission, would be available to such applicants or volunteers.
Congress, in extending the non-discrimination protections to the
volunteers, required that the Directors of ACTION and Peace Corps
prescribe regulations specifically tailored to the circumstances of
such volunteers. This mandate led to the promulgation of the rules in
45 CFR 1225, which applied to both Peace Corps volunteers and domestic
volunteers (and applicants for such volunteer service) who filed
complaints of discrimination. At that time, a section was also added to
the Peace Corps' regulations, at 22 CFR part 300 entitled Volunteer
Discrimination Complaint Procedure, which only contains a cross
reference to 45 CFR part 1225 (see 22 CFR part 306).
In December of 1981, Congress again separated the Peace Corps from
domestic volunteers, and removed it from the umbrella of ACTION (Pub.
L. 97-113). In the Domestic Volunteer Service Act Amendment of 1984,
Public Law 98-288, sec. 30a (codified at 42 U.S.C. 5057), Congress
expressly removed the Peace Corps from being subject to Title VII of
the Civil Rights Act and the other non-discrimination statutes.
However, conforming amendments by ACTION (now subsumed by the
Corporation for National and Community Service) were not made to 45 CFR
part 1225 to remove references to the Peace Corps.
The Peace Corps Act (22 U.S.C. 2501, et seq.) establishes the Peace
Corps and sets forth the requirements for program operations, including
those for selecting volunteers. The Act states that ``except as
provided in [the Act], volunteers shall not be deemed officers or
employees or otherwise in the service or employment of, or holding
office under, the United States for any purpose. In carrying out this
subsection, there shall be no discrimination against any person on
account of race, sex, creed, or color.''
Because Peace Corps volunteers are not considered federal employees
or otherwise in the service or employment of the United States for any
purpose not specified in the Peace Corps Act, the regulations
implementing Section 717 of the Civil Rights Act of 1964 (and other
nondiscrimination policies and authorities), and the right to appeal to
the Equal Employment Opportunity Commission, do not apply to
volunteers.
These regulations were first promulgated to ensure that volunteers
had a process to make complaints regarding discriminatory conduct
proscribed by the Peace Corps Act and the Peace Corps' policy. The
regulations are now being updated and revised to reflect current best
practices.
These rules were last published in the Federal Register on January
6, 1981, and entered into effect on January 6, 1981, and appeared at 45
CFR part 1225, which was cross referenced in 22 CFR part 306.
Public Comments: The Peace Corps did not receive any public
comments concerning this proposed joint rule.
Summary of Changes: The final joint rule makes adjustments for
clarification and efficiency, streamlines the language of some
procedural provisions, and makes the following key changes:
22 CFR Part 306
(1) Purpose. Sec. 306.1 is a revision of 45 CFR 1225.1. It changes
and expands the list of protected classes that can be considered as a
basis for filing claims of discrimination, and includes the Peace Corps
Inspector General as an additional avenue for filing claims of
discrimination.
(2) Policy. Sec. 306.2 is a revision of 45 CFR 1225.2. It amends
the language setting forth how the Peace Corps will respond to cases in
which discrimination was found and adds that Peace Corps staff members
are required to participate in investigations.
(3) Definitions. Sec. 306.3 is a revision of 45 CFR 1225.3. It
expands the definition of ``volunteer'' to include persons who were
sworn in as volunteers but are no longer in service; conforms changes
to titles such as the Director of the Office of Civil Rights and
Diversity (instead of E.O. Director); adds definitions for words used
in the regulations, such as ``counselor'' and ``filing date''; and
revises other definitions to reflect current roles and practices.
(4) Coverage. Sec. 306.4 is a revision of 45 CFR 1225.4. It
addresses the consolidation of claims under a single complaint, as well
as complaints that fall under separate Peace Corps administrative
processes. The revision clarifies that these regulations do not create
any new rights of action or jurisdiction before U.S. courts.
(5) Representation. Sec. 306.5 is a revision of 45 CFR 1225.5. It
abridges the current section on representation and removes language
that is no longer pertinent.
(6) Freedom from retaliation. Sec. 306.6 is a restatement of 45
CFR 1225.6 with no significant changes other than changing the word
reprisal to retaliation and consolidating a number of behaviors under
the term retaliation.
(7) Review of allegations of retaliation. Sec. 306.7 is a
restatement of 45 CFR 1225.7, and it additionally grants the OCRD
Director discretion in consolidating claims.
(8) Pre-complaint procedure. Sec. 306.8 replaces the current 45
CFR 1225.8. It is a step-by-step explanation of the process followed
when an individual files an initial complaint of discrimination, which
is also known as the ``counseling'' or ``informal'' stage, and is
geared toward reaching a mutual resolution between the complainant and
the agency. The new section specifies timetables to be followed,
responsibilities of specific agency officers, and notifications that
need to be provided to the individual and to relevant staff.
[[Page 30171]]
(9) Complaint procedure. Sec. 306.9 replaces the current 45 CFR
1225.9. It is a step-by-step explanation of the process to be followed
when an individual files a formal complaint of discrimination, which
involves an investigation and a final agency decision. The new section
specifies standards for acceptance and dismissal, timetables to be
followed, responsibilities of specific agency officers, and
notifications that need to be provided to the individual and to
relevant staff. It also outlines the timeframe and process for
appealing a proposed final agency decision to the Director of the Peace
Corps.
(10) Corrective action. Sec. 306.10 is a restatement of 45 CFR
1225.10 with no changes other than removing a provision about
attorney's fees. Sections 1225.11 through 1225.21 were stricken in
their entirety.
45 CFR Part 1225
The edits are technical in nature. For example, they remove any
references to the Peace Corps, the Director of Peace Corps, or the
Peace Corps Act throughout the section, and replace references to
ACTION with Corporation for Community and National Service (CNCS) and
AmeriCorps and SeniorCorps.
Regulatory Certifications
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
E.O. 12866, ``Regulatory Planning and Review,'' section 1(b),
Principles of Regulation, and in accordance with E.O. 13563,
``Improving Regulation and Regulatory Review,'' section 1(b), General
Principles of Regulation, and the Office of Management and Budget,
Office of Information and Regulatory Affairs has determined it to be
non-significant within the meaning of E.O. 12866. Additionally, because
this rule does not meet the definition of a significant regulatory
action, it does not trigger the requirements contained in E.O. 13771.
See OMB's Memorandum titled ``Interim Guidance Implementing Section 2
of the E.O. of January 30, 2017, titled `Reducing Regulation and
Controlling Regulatory Costs''' (February 2, 2017), supplemented by
OMB's Memorandum titled ``Implementing E.O. 13771, Titled `Reducing
Regulation and Controlling Regulatory Costs.' ''
Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))
This regulatory action will not have a significant adverse impact
on a substantial number of small entities.
Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)
This regulatory action does not contain a Federal mandate that will
result in the expenditure by State, local, and tribal governments, in
aggregate, or by the private sector, of $100,000,000 or more in any one
year, and it will not significantly or uniquely affect small
governments.
Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)
This regulatory action will not impose any additional reporting or
recordkeeping requirements under the Paperwork Reduction Act.
Federalism (Executive Order 13132)
This regulatory action does not have Federalism implications, as
set forth in E.O. 13132. It will not have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
List of Subjects in 22 CFR Part 306 and 45 CFR Part 1225
Administrative practice and procedure, Aged, Civil rights,
Individuals with disabilities, Political affiliation discrimination,
Religious discrimination, Sex discrimination, Volunteers.
0
For the reasons set out in the preamble, the Peace Corps revises 22 CFR
Part 306 as follows:
PART 306--VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE
Sec.
Subpart A. General Provisions
Sec. 306.1 Purpose.
Sec. 306.2 Policy.
Sec. 306.3 Definitions.
Sec. 306.4 Coverage.
Sec. 306.5 Representation.
Sec. 306.6 Freedom from retaliation.
Sec. 306.7 Review of allegations of retaliation.
Subpart B. Processing Individual Complaints of Discrimination
Sec. 306.8 Pre-complaint procedure.
Sec. 306.9 Complaint procedure.
Sec. 306.10 Corrective action.
Authority: 22 U.S.C. 2501 et seq.
PART 306--VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE
Subpart A--General Provisions
Sec. 306. Purpose.
The purpose of this part is to establish a procedure for the
filing, investigation, and administrative determination of allegations
of discrimination (including harassment) based on race, color,
religion, sex, national origin, age (40 or over), disability or other
bases provided for in applicable statutes, regulations or the Peace
Corps Manual or history of participation in the Peace Corps
discrimination complaint process which arise in connection with the
recruitment, selection, placement, service, or termination of
applicants, trainees, or volunteers. In addition, any Peace Corps
applicant, trainee, or volunteer may submit an allegation of
discrimination to the Peace Corps Office of Inspector General at any
time, and the allegation will be processed in accordance with policy
and procedures of the Office of Inspector General.
Sec. 306.2 Policy.
(a) In the recruitment, selection, placement, service, and
termination of Peace Corps Trainees and Volunteers, it is the policy of
the Peace Corps to provide equal opportunity for all persons and to
prohibit discrimination based on race, color, religion, sex, national
origin, age (40 or over), disability, and other bases provided for in
applicable statutes, regulations or the Peace Corps Manual, or history
of participation in the Peace Corps discrimination complaint process.
(b) It is the policy of the Peace Corps, upon a determination that
such prohibited discrimination has occurred, to take appropriate
corrective action to remedy the discrimination and to prevent its
recurrence.
(c) It is the policy of the Peace Corps that all agency staff must
cooperate in the investigation of a complaint. Volunteers and trainees
are strongly encouraged to cooperate.
Sec. 306.3 Definitions.
Unless the context requires otherwise, in this part:
Applicant means a person who has submitted a completed application
required for consideration of eligibility for Peace Corps Volunteer
service. ``Applicant'' may also mean a person who alleges that the
actions of agency personnel precluded them from submitting such an
application or any other information reasonably required by the
appropriate personnel as
[[Page 30172]]
necessary for a determination of the individual's eligibility for
Volunteer service.
Complainant means an aggrieved applicant, trainee, or volunteer who
believes they have been subject to prohibited discrimination and files
a formal complaint.
Complaint means a written statement signed by a Complainant
alleging prohibited discrimination and submitted to the OCRD Director,
as described in Sec. 306.9(a).
Counselor means an official designated by the OCRD Director to
perform an informal inquiry focused on possible resolution as detailed
in this Part.
Director means the Director of the Peace Corps.
File(d) Date means the date a Complaint is received by the
appropriate agency official.
Final Agency Decision (FAD) means the Peace Corps' final written
determination on a complaint.
OCRD Director means the Director of the Peace Corps' Office of
Civil Rights and Diversity.
Prohibited discrimination means discrimination (including
harassment) on the basis of race, color, religion, sex, national
origin, age (40 or over), disability, or other bases provided for in
applicable statutes, regulations or the Peace Corps Manual, or history
of participation in the Peace Corps discrimination complaint process.
Trainee means a person who has accepted an invitation issued by the
Peace Corps and has registered for Peace Corps staging.
Volunteer means a person who has taken the oath of service and been
sworn in for Peace Corps service, whether or not this person is still
in Peace Corps service.
Sec. 306.4 Coverage.
(a) Except as set out below, these procedures apply to all Peace
Corps applicants, trainees, and volunteers.
(1) To the extent that a trainee or volunteer makes a complaint
containing an allegation of prohibited discrimination in connection
with conduct that constitutes sexual misconduct as defined in the Peace
Corps' policy on volunteer sexual misconduct.
(2) When an applicant, trainee, or volunteer makes a complaint
which contains an allegation of prohibited discrimination in connection
with an early termination or other administrative procedure of the
agency, only the allegation of prohibited discrimination will be
processed under this part. At the discretion of the OCRD Director,
additional allegations or claims material to the complaint may be
consolidated with the discrimination complaint for processing under
these regulations. Any issues which are not so consolidated will
continue to be processed under those procedures pursuant to which they
were originally raised.
(3) Complaints of retaliation in connection with allegations made
under the Peace Corps Volunteer Confidentiality Protection policy shall
be handled in accordance with that policy.
(b) The OCRD Director has the discretion to consolidate complaints
from different applicants, Trainees, or Volunteers that allege common
underlying facts and similar claims.
(c) These regulations do not create any right or benefit,
substantive or procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or entities, its
officers, employees, or agents, or any other person. Coverage under
these rules does not constitute acceptance by the agency or the United
States Government of jurisdiction for judicial review.
Sec. 306.5 Representation.
Any aggrieved party may be assisted in all stages of these
procedures under this Part by an attorney or non-staff representative
of his or her own choosing at his or her own expense. An aggrieved
party must immediately inform the agency if representation is retained.
Sec. 306.6 Freedom from retaliation.
Aggrieved parties, their representatives, and witnesses will be
free from retaliation at any stage in the presentation and processing
of a complaint under this section, including the counseling stage
described in 306.8 of this Part, or any time thereafter.
Sec. 306.7 Review of allegations of retaliation.
(a) An aggrieved party, his or her representative, or a witness who
alleges retaliation in connection with the presentation of a complaint
under this part, may, if covered by this Part, request in writing that
the allegation be reviewed as an act of discrimination subject to the
procedures described in subpart B or that the allegation be considered
as an issue in the complaint at hand. The determination whether to
consider the complaint in the same or a separate proceeding is within
the discretion of the OCRD Director.
Subpart B--Processing Individual Complaints of Discrimination
Sec. 306.8 Pre-complaint procedure.
(a) Any applicant, trainee or volunteer who believes that he or she
has been subject to prohibited discrimination must bring such
allegations to the attention of OCRD within 60 days of the alleged
discrimination, at which point a Counselor will be assigned to attempt
to resolve them.
(b) The pre-complaint procedure is intended to determine whether
the concerns of the aggrieved party can be resolved to the mutual
satisfaction of the aggrieved party and the agency without the filing
of a formal complaint.
(c) The counselor serves as a neutral party, to gather a limited
amount of information from the aggrieved party about his or her
allegations, explain to the aggrieved party his or her rights, obtain
information to determine the applicability of this regulation, and
where appropriate, attempt an informal resolution among relevant
parties.
(d) The amount of information that the counselor gathers from the
agency is limited to information needed to reach an informal resolution
to the mutual satisfaction of the aggrieved party and the agency.
(e) The counselor will keep a written record of his or her
activities, which will be submitted to the OCRD Director as a
counselor's report.
(f) To the extent necessary to reach an informal resolution, the
counselor may reveal to relevant agency officials the identity of the
aggrieved party. In the event that the aggrieved party requests that
the Counselor not share his or her identity with agency officials, the
Counselor will not reveal the identity of the aggrieved party (or
information that could be used to easily identify the aggrieved party)
outside of OCRD. If appropriate, the Counselor should explain to the
aggrieved party that an informal resolution and/or the scope of relief
available may be limited as a result of the request for anonymity.
(g) The pre-complaint process should be completed within 30 days,
but the OCRD Director may extend the period upon request of the
aggrieved party or the agency for good cause shown.
(h) If, after inquiry and counseling, an informal resolution to the
allegation is not reached, the Counselor will notify the aggrieved
party in writing of the right to file a formal complaint of
discrimination with the OCRD Director within 30 calendar days of the
aggrieved party's receipt of the notice.
(i) As an alternative to assignment of a Counselor as described
above, the aggrieved party may ask for Alternative
[[Page 30173]]
Dispute Resolution as set out in the Peace Corps' policy. In such a
case, the parties have 90 days to attempt in good faith to reach an
informal resolution of the allegation. At any time during the course of
Alternative Dispute Resolution, the aggrieved party or the Responsible
Management Official (or their Supervisor), in consultation with the
Office of the General Counsel, may terminate those proceedings.
Sec. 306.9 Complaint procedure.
(a) An applicant, trainee or volunteer who wishes to file a formal
complaint must do so within 30 days of receiving the notice set out in
306.8(g) above, by filing a signed complaint in writing with OCRD. A
complaint must set forth specifically:
(1) A detailed description, including names and dates, if possible,
of the actions of the Peace Corps officials or other persons which
resulted in the alleged prohibited discrimination;
(2) The manner in which the Peace Corps' action directly affected
the complainant; and
(3) The relief sought.
(b) A complaint that does not conform to the above requirements
will nevertheless be deemed to have been received by the OCRD, and the
complainant will be notified of the steps necessary to correct the
deficiencies of the complaint. The complainant will have 30 days from
receipt of notification that the complaint is defective to submit an
amended complaint.
(c) The OCRD Director must accept a complaint if the process set
forth above has been followed, and the complaint states a covered claim
of prohibited discrimination. The OCRD Director may extend the time
limits set out above:
(1) When the complainant shows that they were not notified of the
time limits and were not otherwise aware of them;
(2) The complainant shows that they were prevented by circumstances
beyond their control from submitting the matter in a timely fashion; or
(3) For other reasons considered sufficient by the OCRD Director.
(d) At any time during the complaint procedure, the OCRD Director
may dismiss a complaint based on the aggrieved party's failure to
prosecute the complaint. However, this action may be taken only after:
(1) The OCRD Director has made a written request, including notice
of the proposed dismissal, that the Complainant provide certain
information or otherwise proceed with the complaint; and
(2) 30 days have elapsed since the sending of the request.
If the complaint is rejected for failure to meet one or more of the
requirements set out in the procedure outlined in 306.8 or is
dismissed, the OCRD Director will inform the aggrieved party in writing
of this FAD, advising that the Peace Corps will take no further action.
(e) Upon acceptance of the complaint and receipt of the Counselor's
report, the OCRD Director will provide for a prompt impartial
investigation of the complaint. The OCRD may employ a Peace Corps
employee or external party to conduct the investigation. If a Peace
Corps employee is selected to investigate the complaint, the person
assigned to investigate the complaint may not occupy a position in the
agency which is, directly or indirectly, under the jurisdiction of the
head of that part of the agency in which the complaint arose. The
investigation will include a review of the circumstances under which
the alleged discrimination occurred, and any other circumstances which
may constitute, or appear to constitute, discrimination against the
complainant.
(f) Agency officials responsible for providing information relating
to the complaint to the investigator will be provided such information
about the complaint as they may need in order to respond appropriately.
For example, responding agency officials who have a need to know may be
provided with information including the identity of the complainant and
statements of the alleged discriminatory basis and adverse action.
(g) In cases where sensitive and/or protected information about
applicants, trainees, or volunteers (other than the complainant) is
requested or involved, agency officials may only disclose such
information that is directly relevant to claim(s) being investigated,
and must ensure that such information is handled in such a manner that
the privacy of the applicants, trainees, or volunteers in question is
fully protected, in accordance with the Peace Corps' policy on
confidentiality of volunteer information.
(h) Every agency official responsible for providing information
relating to the complaint to the investigator may at any point consult
the Office of the General Counsel and/or his or her supervisor, unless
the supervisor is alleged to have been involved in the conduct that is
the subject of the complaint. Agency officials responsible for
providing information to the investigator shall only provide
information based on personal knowledge, and should not seek to align
or conform his or her statement with that of another responding agency
official.
(i) The investigator will compile a report of investigation (ROI)
and forward the ROI to the OCRD Director. The OCRD Director will
arrange for preparation of a draft FAD, which will be in writing, state
the reasons underlying the decision, recommend corrective action if and
as appropriate, and advise the complainant of the right to appeal the
recommended FAD to the Peace Corps Director, or designee. To the extent
feasible, this will be completed within 120 days of the filing of the
complaint. However, the OCRD Director has discretion to extend the
period.
(j) The OCRD Director will issue the proposed FAD to the
complainant with a copy of the ROI.
(k) Within ten calendar days of receipt of such proposed FAD, the
complainant may submit his or her appeal of the proposed disposition to
the Peace Corps Director, or designee.
(l) The Peace Corps Director, or designee, will, to the extent
feasible, decide the issue within 45 days of the date of receipt of the
appeal. The claimant will be informed in writing of the decision and
its basis and advised that it is the FAD regarding the complaint.
(m) Where a complainant does not submit a timely appeal pursuant to
(k) above, the OCRD Director will issue the proposed FAD as the FAD.
(n) The OCRD Director will inform relevant management officials as
to whether or not prohibited discrimination was found in the FAD.
Sec. 306.10 Corrective action.
When the agency's FAD states that the aggrieved party has been
subjected to prohibited discrimination, the following corrective
actions may be taken:
(a) Selection as a trainee for an otherwise qualified complainant
found to have been denied selection based on prohibited discrimination.
(b) Reinstatement to volunteer service for a complainant found to
have been early-terminated as a result of prohibited discrimination. To
the extent possible, a terminated volunteer will be placed in the same
position previously held. However, reinstatement to the specific
country of prior service, or to the specific position previously held
is contingent on programmatic considerations, including but not limited
to the continued availability of the position or program in that
country, and acceptance by the host country of such placement. If the
same position is deemed to be no longer available, the aggrieved party
will be offered reenrollment in a position in as similar as possible
circumstances to the position previously held, or will be given
interrupted service status. A
[[Page 30174]]
reenrollment may require a medical clearance and/or other clearances,
and both additional training and an additional two year commitment to
Volunteer service.
(c) Such other relief as may be deemed appropriate by the Peace
Corps.
CORPORATION FOR NATIONAL COMMUNITY SERVICE
0
For the reasons set out in the preamble, the Corporation for National
Community Service revises 45 CFR part 1225 to read as follows:
PART 1225--MEMBER AND VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE
Sec.
Subpart A. General Provisions
Sec. 1225.1 Purpose.
Sec. 1225.2 Policy.
Sec. 1225.3 Definitions.
Sec. 1225.4 Coverage.
Sec. 1225.5 Representation.
Sec. 1225.6 Freedom from reprisal.
Sec. 1225.7 Review of allegations of reprisal.
Subpart B. Processing Individual Complaints of Discrimination
Sec. 1225.8 Precomplaint procedure.
Sec. 1225.9 Complaint procedure.
Sec. 1225.10 Corrective action.
Sec. 1225.11 Amount of attorney fees.
Subpart C. Processing Class Complaints of Discrimination
Sec. 1225.12 Precomplaint procedure.
Sec. 1225.13 Acceptance, rejection or cancellation of a complaint.
Sec. 1225.14 Consolidation of complaints.
Sec. 1225.15 Notification and opting out.
Sec. 1225.16 Investigation and adjustment of complaint.
Sec. 1225.17 Agency decision.
Sec. 1225.18 Notification of class members of decision.
Sec. 1225.19 Corrective action.
Sec. 1225.20 Claim appeals.
Sec. 1225.21 Judicial review.
Authority: 42 U.S.C. 5057(d), 12635(d), and 12651(c).
Subpart A--General Provisions
Sec. 1225.1 Purpose.
The purpose of this part is to establish a procedure for the
filing, investigation, and administrative determination of allegations
of discrimination based on race, color, national origin, religion, age,
sex, disability or political affiliation, which arise in connection
with the recruitment, selection, placement, service, or termination of
AmeriCorps and AmeriCorps Seniors applicants, candidates, Members and
Volunteers for part time and full time service, as appropriate.
Sec. 1225.2 Policy.
It is the policy of the Corporation for National and Community
Service (CNCS) to provide equal opportunity in all its national service
programs for all persons and to prohibit discrimination based on race,
color, national origin, religion, age, sex, disability or political
affiliation in the recruitment, selection, placement, service, and
termination of AmeriCorps and AmeriCorps Seniors applicants,
candidates, Members and Volunteers. It is the policy of CNCS, upon
determining that such prohibited discrimination has occurred, to take
all necessary corrective action to remedy the discrimination, and to
prevent its recurrence.
Sec. 1225.3 Definitions.
Unless the context requires otherwise, in this part:
Agent means a class member who acts for the class during the
processing of a class complaint. In order to be accepted as the agent
for a class complaint, in addition to those requirements of a complaint
found in Sec. 1225.3, the complaint must meet the requirements for a
class complaint as found in subpart C of this part.
AmeriCorps member means a person who serves in a national service
position for which a Segal AmeriCorps Education Award could be
provided.
AmeriCorps Seniors Volunteer means a person who serves as a
volunteer through a program funded under Title II of the DVSA,
including the Retired Senior Volunteer Program, the Foster Grandparent
Program, and the Senior Companion Program.
Applicant means a person who has submitted a completed application
required for consideration of eligibility for CNCS national service as
a member or volunteer. Applicant may also mean a person who alleges
that the actions of recipient or subrecipient organization staff, or
agency personnel precluded him or her from submitting such an
application or any other information reasonably required by CNCS as
necessary for a determination of the individual's eligibility for
national service.
Candidate means a person who has accepted an offer to commence
service as a member or volunteer but has not yet enrolled for service
in a CNCS national service program.
CEO means the Chief Executive Officer of CNCS. The term shall also
refer to any designee of the CEO.
Complaint means a written statement signed by the complainant and
submitted to the EEOP Director. A complaint shall set forth
specifically and in detail:
(1) A description of the management policy or practice during the
application stage as an applicant, during the candidacy stage as a
candidate, or during the service stage as a member or volunteer, if
any, giving rise to the complaint;
(2) A detailed description including names and dates, if possible,
of the actions of CNCS, recipients or subrecipients of CNCS assistance
or resources, or the officials of those recipients or subrecipients,
which resulted in the alleged illegal discrimination;
(3) The manner in which the action of CNCS, or the CNCS recipient
or subrecipient, directly affected the complainant; and
(4) The relief sought.
(5) A complaint shall be deemed filed on the date it is received by
the appropriate agency official. When a complaint does not conform with
the above definition, it shall nevertheless be accepted. The
complainant shall be notified of the steps necessary to correct the
deficiencies of the complaint. The complainant shall have 30 days from
his or her receipt of notification of the complaint defects to resubmit
an amended complaint.
Counselor means an official designated by the EEOP Director to
perform the functions of conciliation as detailed in this part.
EEOP Director means the Director of the Equal Employment
Opportunity Program of CNCS. The term shall also refer to any designee
of the EEOP Director.
Illegal discrimination means discrimination on the basis of race,
color, national origin, religion, age, sex, disability or political
affiliation as defined in Title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.); Title V of the Rehabilitation Act of 1973 (29
U.S.C. 791, et seq.); the Age Discrimination Act of 1975 (42 U.S.C.
6101, et seq.), Section 175 of the National and Community Service Act
of 1990, as amended, and Section 5057 of the Domestic Volunteer Service
Act of 1973, as amended. Further clarification of the scope of matters
covered by this definition may be obtained by referring to the
following regulations: Sex Discrimination: 29 CFR part 1604; Religious
Discrimination: 29 CFR part 1605; National Origin Discrimination: 29
CFR part 1606; Age Discrimination: 45 CFR part 90; Disability
Discrimination: 29 CFR part 1630.
Sec. 1225.4 Coverage.
(a) These procedures apply to all CNCS national service applicants,
candidates, members and volunteers
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throughout their term of service with CNCS, or with recipients and
subrecipients of CNCS assistance or resources. When an applicant,
candidate, member or volunteer makes a complaint which contains an
allegation of illegal discrimination in connection with an action that
would be otherwise be processed under a grievance, early termination,
or other administrative system of the agency, the allegation of illegal
discrimination shall be processed under this part. At the discretion of
the EEOP Director, any other issues raised may be consolidated with the
discrimination complaint for processing under these regulations. Any
issues which are not so consolidated shall continue to be processed
under those procedures in which they were originally raised.
(b) The submission of class complaints alleging illegal
discrimination as defined above will be handled in accordance with the
procedure outlined in subpart C.
Sec. 1225.5 Representation.
Any aggrieved party may be represented and assisted in all stages
of these procedures by an attorney or representative of his or her own
choosing. An aggrieved party must immediately inform the agency if
counsel is retained. Attorney fees or other appropriate relief may be
awarded in the following circumstances;
(a) Informal adjustment of a complaint. An informal adjustment of a
complaint may include an award of attorney fees or other relief deemed
appropriate by the EEOP Director. Where the parties agree on an
adjustment of the complaint, but cannot agree on whether attorney fees
or costs should be awarded, or on their amount, this issue may be
appealed to the CEO, or their designee, in the manner detailed in Sec.
1225.11.
(b) Final agency decision. When discrimination is found, the CEO,
or their designee, shall advise the complainant that any request for
attorney fees or costs must be documented and submitted for review
within 20 calendar days after his or her receipt of the final agency
decision. The amount of such awards shall be determined under Sec.
1225.11. In the unusual situation in which it is determined not to
award attorney fees or other costs to a prevailing complainant, the
CEO, or their designee, in his or her final decision shall set forth
the specific reasons thereof.
Sec. 1225.6 Freedom from reprisal.
Aggrieved parties, their representatives, and witnesses will be
free from restraint, interference, coercion, discrimination, or
reprisal at any stage in the presentation and processing of a
complaint, including the counseling stage described in Sec. 1225.8, or
any time thereafter.
Sec. 1225.7 Review of allegations of reprisal.
An aggrieved party, his or her representative, or a witness who
alleges restraint, interference, coercion, discrimination, or reprisal
in connection with the presentation of a complaint under this part, may
if covered by this part, request in writing that the allegation be
reviewed as an individual complaint of discrimination subject to the
procedures described in subpart B or that the allegation be considered
as an issue in the complaint at hand.
Subpart B--Processing Individual Complaints of Discrimination
Sec. 1225.8 Precomplaint procedure.
(a) An aggrieved person who believes that he or she has been
subject to illegal discrimination shall bring such allegations to the
attention of the appropriate Counselor within 30 days of the alleged
discrimination to attempt to resolve them. Aggrieved applicants,
candidates, members, and volunteers applying for, or enrolled in
programs operated by CNCS, or by recipients or subrecipients of CNCS
assistance or resources, shall direct their allegations to the
designated counselor.
(b) Upon receipt of the allegation, the counselor or designee shall
make whatever inquiry is deemed necessary into the facts alleged by the
aggrieved party and shall counsel the aggrieved party for the purpose
of attempting an informal resolution agreeable to all parties. The
counselor will keep a written record of his or her activities which
will be submitted to the EEOP Director if a formal complaint concerning
the matter is filed.
(c) If after such inquiry and counseling an informal resolution to
the allegation is not reached, the counselor shall notify the aggrieved
party in writing of the right to file a complaint of discrimination
with the EEOP Director within 15 calendar days of the aggrieved party's
receipt of the notice.
(d) The counselor shall not reveal the identity of the aggrieved
party who has come to him or her for consultation, except when
authorized to do so by the aggrieved party. However, the identity of
the aggrieved party may be revealed once the agency has accepted a
complaint of discrimination from the aggrieved party.
Sec. 1225.9 Complaint procedure.
(a) The EEOP Director must accept a complaint if the process set
forth above has followed, and the complaint states a charge of illegal
discrimination. The agency will extend the time limits set herein:
(1) When the complainant shows that he or she was not notified of
the time limits and was not otherwise aware of them, or
(2) The complainant shows that he or she was prevented by
circumstances beyond his or her control from submitting the matter in a
timely fashion, or
(3) For other reasons considered sufficiently by the agency. At any
time during the complaint procedure, the EEOP Director may cancel a
complaint because of failure of the aggrieved party to prosecute the
complaint. If the complaint is rejected for failure to meet one or more
of the requirements set out in the procedure outlined in Sec. 1225.8
or is cancelled, the EEOP Director shall inform the aggrieved party in
writing of this final agency decision: That CNCS will take no further
action; and of the right, to file a civil action as described in Sec.
1225.21.
(b) Upon acceptance of the complaint and receipt of the counselor's
report, the EEOP Director shall provide for the prompt investigation of
the complaint. Whenever possible, the person assigned to investigate
the complaint shall occupy a position in the agency which is not,
directly or indirectly, under the jurisdiction of the head of that part
of the agency in which the complaint arose. The investigation shall
include a thorough review of the circumstances under which the alleged
discrimination occurred, and any other circumstances which may
constitute, or appear to constitute discrimination against the
complainant. The investigator shall compile an investigative file,
which includes a summary of the investigation, recommended findings of
fact and a recommended resolution of the complaint. The investigator
shall forward the investigative file to the EEOP Director and shall
provide the complainant with a copy.
(c) The EEOP Director shall review the complaint file including any
additional statements provided by the complainant, make findings of
fact, and shall offer an adjustment of the complaint if the facts
support the complaint. If the proposed adjustment is agreeable to all
parties, the terms of the adjustment shall be reduced to writing,
signed by both parties, and made part of the complaint file. A copy of
the terms of the adjustment shall be provided to the complainant. If
the proposed
[[Page 30176]]
adjustment of the complaint is not acceptable to the complainant, or
the EEOP Director determines that such an offer is inappropriate, the
EEOP Director shall forward the complaint file with a written
notification of the findings of facts, and his or her recommendations
of the proposed disposition of the complaint to the CEO or their
designee. The aggrieved party shall receive a copy of the notification
and recommendation and shall be advised of the right to appeal the
recommended disposition to the CEO or their designee. Within ten (10)
calendar days of receipt of such notice the complainant may submit his
or her appeal of the recommended disposition to the CEO or their
designee.
(d) If no timely notice of appeal is received from the aggrieved
party, the CEO or their designee may adopt the proposed disposition as
the Final Agency Decision. If the aggrieved party appeals, the CEO, or
a designee who has been delegated authority to issue such a decision,
after review of the total complaint file, shall issue a decision to the
aggrieved party. The decision of the CEO, or their designee, shall be
in writing, state the reasons underlying the decision, shall be the
Final Agency Decision, shall inform the aggrieved party of the right to
file a civil action as described in Sec. 1225.21, and, if appropriate,
designate the procedure to be followed for the award of attorney fees
or costs.
Sec. 1225.10 Corrective action.
When it has been determined by final agency decision that the
aggrieved party has been subjected to illegal discrimination, the
following corrective actions may be taken:
(a) Selection as a member or volunteer for aggrieved parties found
to have been denied selection based on prohibited discrimination.
(b) Reappointment to national service for aggrieved parties found
to have been early-terminated as a result of prohibited discrimination.
To the extent possible, a member or volunteer will be placed in the
same position previously held. However, reassignment to the specific
position previously held is contingent on several programmatic
considerations such as the continued availability of the position. If
the same position is deemed to be no longer available, the aggrieved
party will be offered a reassignment to a position in as similar
circumstances to the position previously held, or to resign from
service for reasons beyond his or her control. Such a reassignment may
require both additional training and an additional commitment to
national service.
(c) Provision for reasonable attorney fees and other costs incurred
by the aggrieved party.
(d) Such other relief as may be deemed appropriate by the CEO or
their designee.
Sec. 1225.11 Amount of attorney fees.
(a) When a decision of the agency provides for an award of
attorney's fees or costs, the complainant's attorney shall submit a
verified statement of costs and attorney's fees as appropriate, to the
agency within 20 days of receipt of the decision. A statement of
attorney's fees shall be accompanied by an affidavit executed by the
attorney of record itemizing the attorney's charges for legal services.
Both the verified statement and the accompanying affidavit shall be
made a part of the complaint file. The amount of attorney's fees or
costs to be awarded the complainant shall be determined by agreement
between the complainant, the complainant's representative and the CEO
or their designee. Such agreement shall immediately be reduced to
writing. If the complainant, the representative and the agency cannot
reach an agreement on the amount of attorney's fees or costs within 20
calendar days of receipt of the verified statement and accompanying
affidavit, the CEO or their designee shall issue a decision determining
the amount of attorney fees or costs within 30 calendar days of receipt
of the statement and affidavit. Such decision shall include the
specific reasons for determining the amount of the award.
(b) The amount of attorney's fees shall be made in accordance with
the following standards: The time and labor required, the novelty and
difficulty of the questions, the skills requisite to perform the legal
service properly, the preclusion of other employment by the attorney
due to acceptance of the case, the customary fee, whether the fee is
fixed or contingent, time limitation imposed by the client or the
circumstances, the amount involved and the results obtained, the
experience, reputation, and ability of the attorney, the undesirability
of the case, the nature and length of the professional relationship
with the client, and the awards in similar cases.
Subpart C--Processing Class Complaints of Discrimination
Sec. 1225.12 Precomplaint procedure.
An applicant, candidate, member or volunteer who believes that he
or she is among a group of present or former CNCS national service
applicants, candidates, members or volunteers, who have been illegally
discriminated against and who wants to be an agent for the class shall
follow those precomplaint procedures outlined in Sec. 1225.8.
Sec. 1225.13 Acceptance, rejection or cancellation of a complaint.
(a) Upon receipt of a class complaint, the counselor's report, and
any other information pertaining to timeliness or other relevant
circumstances related to the complaint, the EEOP Director shall review
the file to determine whether to accept or reject the complaint, or a
portion thereof, for any of the following reasons:
(1) It was not timely filed;
(2) It consists of an allegation which is identical to an
allegation contained in a previous complaint filed on behalf of the
same class which is pending in the agency or which has been resolved or
decided by the agency;
(3) It is not within the purview of this subpart;
(4) The agent failed to consult a Counselor in a timely manner;
(5) It lacks specificity and detail;
(6) It was not submitted in writing or was not signed by the agent;
(7) It does not meet the following prerequisites.
(i) The class is so numerous that a consolidated complaint of the
members of the class is impractical;
(ii) There are questions of fact common to the class;
(iii) The claims of the agent of the class are representative of
the claims of the class;
(iv) The agent of the class, or his or her representative will
fairly and adequately protect the interest of the class.
(b) If an allegation is not included in the counselor's report, the
EEOP Director shall afford the agent 15 calendar days to explain
whether the matter was discussed and if not, why he or she did not
discuss the allegation with the counselor. If the explanation is not
satisfactory, the EEOP Director may decide to reject the allegation. If
the explanation is not satisfactory, the EEOP Director may require
further counseling of the agent.
(c) If an allegation lacks specificity and detail, or if it was not
submitted in writing or not signed by the agent, the EEOP Director
shall afford the agent 30 days from his or her receipt of notification
of the complaint defects to resubmit an amended complaint. The EEOP
Director may decide that the agency reject the complaint if the agent
fails to provide such information within the specified time period. If
the information provided contains new
[[Page 30177]]
allegations outside the scope of the complaint, the EEOP Director must
advise the agent how to proceed on an individual or class basis
concerning these allegations.
(d) The EEOP Director may extend the time limits for filing a
complaint and for consulting with a Counselor when the agent, or his or
her representative, shows that he or she was not notified of the
prescribed time limits and was not otherwise aware of them or that he
or she was prevented by circumstances beyond his or her control from
acting within the time limit.
(e) When appropriate, the EEOP Director may determine that a class
be divided into subclasses and that each subclass be treated as a
class, and the provisions of this section than shall be construed and
applied accordingly.
(f) The EEOP Director may cancel a complaint after it has been
accepted because of failure of the agent to prosecute the complaint.
This action may be taken only after:
(1) The EEOP Director has provided the agent a written request,
including notice of proposed cancellation, that he or she provide
certain information or otherwise proceed with the complaint; and
(2) Within 30 days of his or her receipt of the request.
(g) An agent must be informed by the EEOP Director in a request
under paragraphs (b) or (c) of this section that his or her complaint
may be rejected if the information is not provided.
Sec. 1225.14 Consolidation of complaints.
The EEOP Director may consolidate the complaint if it involves the
same or sufficiently similar allegations as those contained in a
previous complaint filed on behalf of the same class which is pending
in the agency or which had been resolved or decided by the agency.
Sec. 1225.15 Notification and opting out.
(a) Upon acceptance of a class complaint, the agency, within 30
calendar days, shall use reasonable means such as delivery, mailing,
distribution, or posting, to notify all class members of the existence
of the class complaint.
(b) A notice shall contain:
(1) The name of the agency or organizational segment thereof, its
location and the date of acceptance of the complaint:
(2) A description of the issues accepted as part of the class
complaint;
(3) An explanation that class members may remove themselves from
the class by notifying the agency within 30 calendar days after
issuance of the notice; and
(4) An explanation of the binding nature of the final decision or
resolution of the complaint.
Sec. 1225.16 Investigation and adjustment of complaint.
The complaint shall be processed promptly after it has been
accepted. Once a class complaint has been accepted, the procedure
outlined in 1225.9 of this part shall apply.
Sec. 1225.17 Agency decision.
(a) If an adjustment of the complaint cannot be made, the
procedures outlined in 1225.9 shall be followed by the EEOP Director
except that any notice required to be sent to the aggrieved party shall
be sent to the agent of the class or his or her representative.
(b) The final agency decision on a class complaint shall be binding
on all members of the class.
Sec. 1225.18 Notification of class members of decision.
Class members shall be notified by the agency of the final agency
decision and corrective action, if any, using at the minimum, the same
media employed to give notice of the existence of the class complaint.
The notice, where appropriate, shall include information concerning the
rights of class members to seek individual relief and of the procedures
to be followed. Notice shall be given by the Agency within ten (10)
calendar days of the transmittal of its decision to the agent.
Sec. 1225.19 Corrective action.
(a) When discrimination is found. CNCS, or the recipient or
subrecipient of CNCS assistance or resources, as appropriate, must take
appropriate action to eliminate or modify the policy or practice out of
which such discrimination arose, and provide individual corrective
action to the agent and other class members in accordance with Sec.
1225.10.
(b) When discrimination is found and a class member believes that
but for that discrimination he or she would have been accepted as a
member or volunteer or received some other volunteer service benefit,
the class member may file a written claim with the EEOP Director within
thirty (30) calendar days of notification by the agency of its
decision.
(c) The claim must include a specific, detailed statement showing
that the claimant is a class member who was affected by an action or
matter resulting from the discriminatory policy or practice which arose
not more than 30 days preceding the filing of the class complaint.
(d) The Agency shall attempt to resolve the claim within sixty (60)
calendar days after the date the claim was postmarked, or in the
absence of a postmark, within sixty (60) calendar days after the date
it was received by the EEOP Director.
Sec. 1225.20 Claim appeals.
(a) If the EEOP Director and claimant do not agree that the
claimant is a member of the class, or upon the relief to which the
claimant is entitled, the EEOP Director shall refer the claim, with
recommendations concerning it, to the CEO or their designee for a Final
Agency Decision and shall so notify the claimant. The class member may
submit written evidence to the CEO or their designee concerning his or
her status as a member of the class. Such evidence must be submitted no
later than ten (10) calendar days after receipt of referral.
(b) The CEO or their designee shall decide the issue within thirty
(30) days of the date of referral by the EEOP Director. The claimant
shall be informed in writing of the decision and its basis and that it
will be the Final Agency Decision of the issue.
Sec. 1225.21 Judicial review.
(a) An applicant, candidate, member or volunteer is authorized to
file a civil action in an appropriate U.S. District Court:
(1) Within thirty (30) calendar days of his or her receipt of the
notice of final action taken by the agency; or
(2) After one hundred eighty (180) calendar days from the date of
filing a formal discrimination complaint with the agency if there has
been no final agency action.
Dated: May 13, 2021.
Fernando Laguarda,
General Counsel of the Corporation for National and Community Service.
Carl Taylor,
Acting General Counsel of the Peace Corps.
[FR Doc. 2021-11284 Filed 6-4-21; 8:45 am]
BILLING CODE 6051-01-P
